Rashid, R v

An admissibility issue finally determined on an interlocutory appeal cannot be reopened on an appeal against conviction. Once evidence is lawfully admitted, its voluntariness, reliability and weight are matters for the jury.

The court has an inherent power to appoint an intermediary for a defendant where this is necessary for a fair trial. The judge must assess capacity from all the evidence and is not bound by expert conclusions. The court must distinguish general support during a trial from skilled assistance when the defendant gives evidence. Competent advocacy and trial management will usually meet the former need. Appointment for a defendant’s evidence is rare; appointment for the whole trial is extremely rare.

The applicant was convicted at the Crown Court at Woolwich of two offences under section 5 of the Terrorism Act 2006, having pleaded guilty to fraud. His case was that he had travelled towards Syria without understanding that his companions intended to fight for Islamic State.

Before trial, the judge admitted the applicant’s first police interview and directed that an intermediary be available when he gave evidence, but not throughout the trial. An earlier interlocutory appeal had upheld the admission ruling and found that the court lacked jurisdiction to determine the intermediary case-management decision: R v R [2015] EWCA Crim 1870.

The applicant sought leave to appeal against conviction, alleging unfair admission of the interview, inadequate intermediary assistance, and inadmissible psychiatric expert evidence.

1. Application for leave to appeal refused; conviction safe. The earlier interlocutory appeal had finally determined the legal admissibility of the first police interview. The applicant could not reopen that issue on this appeal. Once admitted, the jury properly decided whether the admissions were voluntary and reliable and what weight they carried. In any event, the trial judge’s thorough ruling that the applicant was not mentally vulnerable and that no appropriate adult was required was correct.

2. The statutory power in section 33BA of the Youth Justice and Criminal Evidence Act 1999 was not in force. The court nevertheless had an inherent common-law power to appoint an intermediary where necessary to enable a defendant to give best-quality evidence, participate effectively and receive a fair trial. R (C) v Sevenoaks Youth Court [2009] EWHC 3088 Admin established that the common-law power was available.

3. A judge must first assess the defendant’s capacity on the whole evidence. That includes educational history, the judge’s own observations and recorded interviews, as well as expert evidence. The judge was not bound to accept expert conclusions, particularly where the experts disagreed.

4. The court approved the distinction in R (OP) v Ministry of Justice [2014] EWHC 1944 (Admin) between general support during trial and skilled intermediary assistance during evidence. The latter need is most acute when a defendant gives evidence and is cross-examined. Competent advocates and ordinary trial management should normally provide the former, including by using clear, simple and non-leading questions. An intermediary for the whole trial is therefore an extremely rare measure.

5. On the facts, the applicant could participate fully without an intermediary during the prosecution evidence. The judge was entitled to provide an intermediary only for the applicant’s evidence; subsequent events confirmed that no wider appointment was necessary. The challenge to Dr Lock’s evidence was unsupported and without merit, since his experience entitled him to give the relevant opinion evidence.

• Court of Appeal (Criminal Division) — The application for leave to appeal against conviction was refused. The conviction was held safe.
• Court of Appeal (Criminal Division) — An interlocutory appeal dismissed the challenge to admissibility of the police interview and held that the court lacked jurisdiction to determine the intermediary case-management ruling: R v R [2015] EWCA Crim 1870.
• Crown Court at Woolwich — The applicant was convicted by a jury of two offences under section 5 of the Terrorism Act 2006.